93 Decision Citation: BVA 93-01506
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-06 726 ) DATE
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THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to an increased evaluation for a low back
strain, currently evaluated as 10 percent disabling.
3. Entitlement to an increased (compensable) evaluation for
residuals of laceration and fracture of the left third
finger.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from October 1969 until April
1972.
This matter came before the Board of Veterans' Appeals (the
Board) from a rating decision of July 1991, of the
Nashville, Tennessee, Regional Office (RO), of the
Department of Veterans Affairs (VA). The notice of
disagreement was received in August 1991 and a statement of
the case was issued later that month. The substantive
appeal was received in September 1991.
The veteran testified in support of his claims at a hearing
in October 1991. In a March 1992 decision the hearing
officer granted entitlement to benefits under 38 U.S.C.A. §
1151 (West 1991), for residuals of a laceration and fracture
of the third finger of the left hand and assigned a
noncompensable evaluation for that disorder. Additionally,
a 10 percent evaluation was granted for the
service-connected low back strain but the denial of service
connection for post-traumatic stress disorder was confirmed
and continued. A supplemental statement of the case was
issued later in March 1992.
The case was received and docketed at the Board in May
1992. On file is an informal hearing presentation received
in May 1992, from AMVETS, the veteran's accredited service
representative.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that although the veteran was assigned to a
property disposal unit while in Vietnam, primarily
retrieving scrap metal, he was subjected to sniper fire and
mortar attacks. It is asserted that he fired at the enemy
and because of the incompetence of a lieutenant, one person
in his unit was killed and others were wounded. It is
maintained that on another occasion in Vietnam, he saw
soldiers stab someone in the throat and that he has had
nightmares and flashbacks of having seen that incident and
having seen dead bodies. It is averred that a friend named
Williams was killed in Vietnam and that the veteran has had
psychiatric and emotional problems ever since service in
Vietnam. It is contended that because of his difficulty
getting along with his lieutenant in Vietnam, he has had
conflicts with supervisors, particularly if they are younger
than he. It is asserted that he was informed during a
recent period of VA hospitalization that he has
post-traumatic stress disorder.
It is averred that the veteran has low back pain on the
right side of his low back which radiates down the posterior
aspect of both legs. It is contended that he has muscle
spasm in his back particularly after walking or standing for
an extended period of time or after lifting more than 20 or
25 pounds. It is asserted that he takes medication for
relief of low back pain.
It is maintained that the claim for post-traumatic stress
disorder has been inadequately developed from an evidentiary
standpoint. It is contended that there has been no
development with respect to the combat history that the
veteran has related, including no attempt to verify his
reported incidents of ambushes and firefights. It is
asserted that his unit records should be obtained and that
his personnel (201) file has not been obtained and
associated with the claims folder. It is contended that he
should be afforded a VA psychiatric examination by a
specialist in treating post-traumatic stress disorder and a
social and industrial survey.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the evidence preponderates
against the claims for service connection for post-traumatic
stress disorder, an evaluation in excess of 10 percent for
service connected low back strain, and a compensable
evaluation for residuals of laceration and fracture of the
left third finger.
FINDINGS OF FACT
1. The veteran had active service in the Army from October
1969 until April 1972, his military occupational specialty
was equipment storage specialist, and he served in Vietnam
from April 28, 1970, until April 3, 1971.
2. A psychiatric disorder was not shown in service.
3. Exposure to a stressful situation such as would give
rise to a post-traumatic stress disorder has not been
documented; nor have characteristic symptoms sufficient to
support such diagnosis been shown.
4. The service-connected low back strain is characterized
by pain on motion but the veteran has no unilateral loss of
lateral motion despite the fact that his complaints and
findings are focused primarily on the right side of the
lumbosacral spine, and he has no muscle spasm or disc space
narrowing or irregularity, although he has some arthritic
changes of the lumbosacral spine.
5. The veteran has no limitation of motion of the
lumbosacral spine and although he takes medication for
relief of pain, the disorder is not productive of an unusual
disability picture.
6. The veteran's laceration and fracture of the distal
portion of the third finger of the left hand has healed and
there is good bony apposition and the disorder is not
productive of functional impairment.
CONCLUSIONS OF LAW
1. Post-traumatic stress disorder was not caused by active
service. 38 U.S.C.A. §§ 1110, 1154, 7104 (West 1991);
38 C.F.R. §§ 3.303(c)(d), 3.304(d), 3.306(b)(2).
2. An evaluation in excess of 10 percent for lumbosacral
strain is not warranted on either a schedular or
extraschedular basis. 38 U.S.C.A. §§ 1155, 7104 (West
1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.40,
4.41, 4.45, 4.59, Part 4 and Diagnostic Code 5295 (1991).
3. A compensable evaluation for residuals of a laceration
and fracture of the left third finger is not warranted on
either a schedular or extraschedular basis. 38 U.S.C.A.
§§ 1155, 7104 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1,
4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, Part 4 and
Diagnostic Code 7804 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The United States Court of Veterans Appeals has held that
when, as here, a veteran's claims are plausible, they are
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991) which mandates a duty to assist the veteran in
developing facts pertinent to his claim. Littke v.
Derwinski, 1 Vet. App. 90, 93 (1990). It is contended that
further evidentiary development of the claim for service
connection for post-traumatic stress disorder is necessary.
First, it is contended that there is insufficient
development with respect to the veteran's combat history,
particularly verification of his involvement in ambushes and
firefights during service. However, the veteran's military
occupational speciality was equipment storage specialist and
he testified (at page 5) that he was assigned to a property
disposal unit picking up scrap metal. Although he testified
that he was subjected to mortar and sniper fire, his
testimony concerning combat was only of a vague and general
nature without sufficient specificity as to dates and places
of combat as to lend itself to verification. Additionally,
the veteran's service personnel records have, in fact, been
obtained and associated with the claims folder, contrary to
the contention on appeal. While his military unit records
have not been obtained, it is clear (as will be discussed)
that his focus on events in Vietnam concern his conflicts
with a commanding officer and do not focus upon combat
events or events of such a nature as to be likely to result
in a psychiatric disorder in almost anyone.
Although it is requested that the veteran be afforded
comprehensive VA psychiatric examination to determine
whether he has post-traumatic stress disorder, he was
afforded indepth psychiatric and psychological evaluations
during VA hospitalization from March to May 1991 during
which time the possible existence of post-traumatic stress
disorder was evaluated. The results of the evaluations, in
substance, ruled out the presence of post-traumatic stress
disorder. Therefore, it is our determination that a VA
psychiatric examination as well as a VA social and
industrial survey are not necessary in order to complete the
evidentiary development of the claim. Rather, the evidence
is sufficient both in scope and in depth for the purpose of
rendering a fair, impartial, and fully informed appellate
decision.
I. Post-Traumatic Stress Disorder
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C. 1110. Service connection may be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
3.303(d).
In claims for service connection by a combat veteran, the
adverse effect of not having an official report of an
inservice injury or disease can be overcome by satisfactory
lay or other evidence which shall be sufficient proof of
service occurrence or aggravation if consistent with the
circumstances, conditions, or hardships of service.
38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d);
Moore v. Derwinski, 1 Vet.App. 401, 405 (1991). Moreover,
under 38 C.F.R. § 3.306(b)(2) due consideration is to be
given to the places, circumstances, and types of the
veteran's service with particular attention to be accorded
to any combat duty or other hardships of service. However,
we are not required to accept every bare assertion made by a
veteran as to service incurrence or aggravation of a
disability nor do those provisions create a presumption in
favor of combat veterans in determinations of service
connection. Smith v. Derwinski, 2 Vet.App. 137, 140
(1992). This means that we must weigh and consider the
entire evidentiary record including all lay and clinical
evidence for or against the claim.
In this case, we cannot accept the veteran's uncorroborated
account of his Vietnam experiences as a basis for a
diagnosis of post-traumatic stress disorder in light of the
considerable passage of time between the putative stressful
events during service and the alleged onset of
post-traumatic stress disorder. This is particularly true
because the evidence does not disclose that the nature of
his duties exposed him to a more than ordinary stressful
environment, even though he may have undergone some stress
in a combat zone.
Indeed, the focus of the veteran's complaints concerning
difficulties in Vietnam, both during a VA hospitalization in
1991 and at the hearing, did not focus upon purported combat
in Vietnam. At the hearing he only related one incident in
which he reported having seen some soldiers stab someone in
the throat (page 8). He also related that a service comrade
named Williams had been killed in combat but he did not
testify that he had actually witnessed that death (page 6).
Rather, the focus of his complaints concerning his Vietnam
experiences has centered upon his difficulties in getting
along with the lieutenant in charge of his unit.
The veteran was admitted to a VA medical facility in March
1991 essentially for detoxification following an alcoholic
binge after he had been fired from work as a result of a
conflict with his supervisor. A March 7, 1991, nursing note
reveals that he felt that for the last 7 or 8 years his
employment had been the greatest stressor in his life and
that in the past he had coped with the use of alcohol and
heroin. In a psychiatric assessment the next day, he stated
that he had always had difficulty getting along with
supervisors, including while he was in Vietnam.
Psychological testing on March 11, 1991, revealed that he
had a noticeable character trait and was given to
resentment, nonconformity, and conflicts with authority
figures and social rules.
In summary, it appears that the veteran's interpersonal
difficulties, particularly with supervisors, are a
manifestation of the personality disorder diagnosed during
the period of VA hospitalization in 1991. Under governing
regulations, a personality disorder is not the proper
subject for a grant of service connection inasmuch as it is
a developmental abnormality under 38 C.F.R. § 3.303(c).
Indeed, that regulation notes that a personality disorder is
"...characterized by developmental defects or pathological
trends in the personality structure manifested by a lifelong
pattern..." of maladaptive behavior. The veteran's episodes
of losing control when having conflicts with a supervisor
are consistent with a personality disorder. Moreover,
38 C.F.R. § 4.127 (1991) provides that "[B]rief emotional
outbursts or periods of confusion are not unusual in mental
deficiency or personality disorders..."
The diagnoses on psychological testing during VA
hospitalization in 1991 included an organic mental disorder
and mild dementia of unknown origin. As with a personality
disorder, brief emotional outbursts or periods of confusion
are not unusual in cases of mental deficiency. The
discharge summary of the VA hospitalization in 1991
indicated that the dementia was associated with the
veteran's history of alcohol dependence. Indeed, he has a
long and extensive history of substance abuse. In the VA
hospitalization discharge summary it was reported that he
had used heroin from June 1970 (during service) until May
1985 and had used cocaine for much of 1987. On the VA
psychological evaluation during that hospitalization, on
March 11, it was noted that he had first become dependent
upon heroin in Vietnam and had used a wide array of illicit
chemicals. Given his heroin dependence during service and
his personality disorder, we do not find it unusual that in
the medical history questionnaire at service discharge he
reported having or having had depression or excessive worry
and not knowing whether he had or had every had nervous
trouble of some sort. The service medical records are
otherwise negative for a psychiatric or emotional
disability.
In the report of the psychological evaluation conducted
during the veteran's VA hospitalization in 1991 it was noted
that he had sought treatment for heroin dependence in 1979
at a private medical facility. However, the evidentiary
record discloses no evidence of complaints or symptoms of
post-traumatic stress disorder until a VA outpatient
treatment record of January 6, 1989, when he complained of
flashbacks, nightmares, and sleeping difficulty.
It has been contended that the veteran sought treatment
after service for itching of the skin and heartburn which
were purportedly manifestations of a psychiatric disorder.
The earliest evidence of an upset stomach or nausea is the
VA outpatient treatment notation of December 1, 1975, when
the complaint was felt to be related to his back
discomfort. An outpatient treatment record of January 1986
revealed that he complained of generalized itching for 8 or
9 years, years after service. Furthermore, gastrointestinal
and dermatological complaints are not typical manifestation
of post-traumatic stress disorder. It is significant to
observed that there are no complaints of symptoms specific
to post-traumatic stress disorder prior to 1989. On
psychological evaluation during the VA hospitalization in
1991, it was noted that the veteran had first been admitted
to a locked ward with the provisional diagnoses that
included post-traumatic stress disorder. However, after the
evaluation it was felt that he did not have clinically
sufficient symptomatology to receive treatment for
post-traumatic stress disorder and that disorder was not
diagnosed after the psychological evaluation. In other
words, the diagnostic possibility of a post-traumatic stress
disorder was both entertained and investigated but the
diagnoses after the evaluation related to mental deficits,
substance abuse, and personality disorder.
Overall, the preponderance of the evidence demonstrates that
the veteran did not experience a stressor of such
significance during military service, including combat, as
likely to result in chronic psychiatric disability and,
further, that he does not have post-traumatic stress
disorder.
I. Back Strain
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C. 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various
disabilities. The higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. 4.7.
In exceptional cases where the schedular evaluations are
found to be inadequate, an extraschedular evaluation
commensurate with the average earning capacity impairment
due exclusively to the service-connected disability or
disabilities may be approved provided the case presents such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards.
38 C.F.R. 3.321(b)(1).
In evaluating a service-connected disorder, 38 C.F.R. § 4.2
provides that the evaluation requires the interpretation of
examination reports in light of the whole recorded history,
reconciling various reports so that a current rating may
accurately reflect the elements of disability present.
Further, the veteran's medical and industrial history since
the initial injury or incurrence of disability, and
treatment and reasons therefor over the years, are also to
be given attention. 38 C.F.R. § 4.41. 38 C.F.R. § 4.10
provides that a full description of the effects of the
disability upon the person's ordinary activity is required.
Factors of disability of the musculoskeletal system include
normal excursion, strength, speed, coordination, and
endurance. Functional loss may be due to absence or
deformity of associated structures; or it may be due to
pain, supported by adequate pathology and evidenced by
visible behavior during motion. Weakness is as important as
limitation of motion, and a part which becomes painful on
use must be regarded as seriously disabled. 38 C.F.R.
§ 4.40.
In evaluating service-connected disability of a joint, many
factors are for consideration. These include limitation or
greater than normal range of motion, weakness, fatigability,
incoordination, pain on movement, swelling, deformity, or
atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, in cases
(such as this) involving arthritis, painful motion is an
important factor of disability and behavioral changes on
pressure or manipulation of a joint are for consideration as
corroborating evidence thereof. Muscle spasm also greatly
assists in identification, and sciatic neuritis is not
uncommonly caused by arthritis of the spine. The intent of
the rating schedule is to recognize painful motion with
joint or periarticular pathology as productive of disability
and to recognize the actually painful, unstable or
malaligned joint, due to healed injury, as warranting
entitlement to the minimum compensation. Additionally,
crepitation of soft tissue (e.g. tendons or ligaments), or
within the joint structures should be noted as points of
contact which are diseased. Flexion elicits such
manifestations. 38 C.F.R. § 4.59.
The criteria for evaluating a lumbosacral strain are found
at 38 C.F.R. Part 4, Diagnostic Code 5295 which provides
that only slight subjective symptoms warrant a
noncompensable evaluation but that characteristic pain on
motion warrants a 10 percent evaluation. For a 20 percent
evaluation there must be muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in a
standing position. For a 40 percent evaluation there must
be severe lumbosacral strain with listing of the whole spine
to the opposite side, positive Goldthwait's sign, marked
limitation of forward bending in a standing position, loss
of lateral motion with osteoarthritic changes, or narrowing
or irregularity of joint space, or some of the above with
abnormal mobility on forced motion.
As indicated the criteria for a 40 percent evaluation for a
lumbosacral strain under 38 C.F.R. Part 4, Diagnostic Code
5295, includes osteoarthritic changes. Degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When the limitation of motion is noncompensable an
evaluation of 10 percent is assigned if the joint is
affected by limitation of motion. Limitation of motion must
be objectively confirmed by findings such as swelling,
muscle spasm, or satisfactory evidence of painful motion.
38 C.F.R. Part 4, Code 5003. Slight limitation of motion of
the lumbar segment of the spine warrants a 10 percent
evaluation. A 20 percent evaluation requires moderate
limitation of motion. 38 C.F.R. Part 4, Code 5292.
Historically, the veteran injured his back during service in
March 1971, at which time an examination disclosed muscle
spasm on the right side of the low back area. In January
1972, his low back pain was nonradiating in type and in
February 1972, he was placed on a program of flexion
exercises and given ultrasound therapy. An X-ray on VA
orthopedic examination in April 1973 disclosed slight
scoliosis with convexity to the right and very minimal
osteoarthritic changes. He did not receive extensive
treatment for his low back disorder after military service
and an examination during VA hospitalization in March 1991
disclosed he had good range of motion in six (all of the)
planes of motion. There was no gross abnormality of the
lower extremities attributable to his back and vibratory
sensations of the lower extremities were intact. An X-ray
disclosed sclerosis of the articulation of the facets of the
lumbosacral joints, predominantly on the right side,
occasional minor degenerative spurring of the bodies of the
lumbar vertebrae, and very slight dextroscoliosis (scoliosis
convex to the right) centered at the third lumbar vertebra.
The clinical records of the veteran's March to May 1991 VA
hospitalization disclose that on May 2, 1991, it was noted
that he had had low back pain since he had fallen while
hospitalized. The discharge summary reveals that at
admission it was noted that his back had only occasionally
bothered him. However, the X-ray of March 21, 1991, of the
lumbosacral spine was apparently taken after the injury,
inasmuch as a clinical notation of May 2, 1991, specifically
noted that X-rays had been negative except for
osteoarthritis. It was also noted that he complained of
pain on the right side of the lumbosacral spine but without
radiation of pain into the legs. This contradicts his
testimony (at page 10) of having low back pain which
radiated to the buttocks and down the legs. On the
examination in May 1991, during hospitalization, he
complained of no weakness or numbness or other neurological
disability affecting the lower extremities which might be
attributable to disability of the lumbosacral spine. He had
some mild tenderness to the right of the area of the 4th and
5th lumbar vertebrae but there was no muscle spasm, as he
had had during service. Moreover, straight leg raising was
negative and it was specifically noted that there were no
neurological deficits of the legs. In sum, other than
painful motion and arthritic changes there are no other
findings indicative of a lumbosacral strain, such as muscle
spasm, spinal listing, or joint space narrowing or
irregularity which would more closely approximate the
criteria for an evaluation in excess of the 10 percent
rating currently assigned. Moreover, the disorder does not
present an unusual disability picture and, accordingly, an
extraschedular evaluation is not warranted.
In reaching this determination, the evidence, in our
judgment, preponderates against the claim for an evaluation
in excess of 10 percent for the service-connected low back
strain.
III. Third Finger of Left Hand
During the veteran's period of VA hospitalization from March
to May 1991 the veteran sustained an injury to the distal
aspect of the third finger of the left hand causing a
laceration which was sutured. An X-ray disclosed,
initially, a soft tissue defect at the distal end of the
third finger, dorsally, and traumatic separation of the
ungual tough of the digit from the remainder of the bone by
approximately 3 millimeters. A subsequent X-ray on
April 18, disclosed good alignment and apposition between
the fracture fragments.
At the October 1991 hearing the veteran testified that the
injury occurred when a door slammed on the third finger of
the left hand (at page 4). However, he also testified (at
page 19) that all of the nail of the third finger of the
left hand had initially been traumatically removed but that
the nail had subsequently grown back and that he now had no
disability, in essence, as a result of the injury of the
third finger of the left hand. This is consistent with the
clinical notation of March 20, 1991, during his
hospitalization, five days after the injury, when it was
noted that he had only minimal swelling of the proximal
interphalangeal joint of the third finger of the left hand
and good range of motion.
Inasmuch as the evidence fails to establish that there is
any impairment resulting from the residuals of a laceration
and fracture of the distal portion of the third finger of
the left hand, a compensable evaluation is not warranted,
particularly in light of the fact that to warrant a
compensable evaluation there would have to be amputation
thereof under 38 C.F.R. Part 4, Diagnostic Code 5194 or,
alternatively, a tender and painful or a poorly nourished
and ulcerative scar under 38 C.F.R. Part 4, Diagnostic
Code 7803 and 7804.
ORDER
Service connection for post-traumatic stress disorder is
denied.
An evaluation in excess of 10 percent for low back strain is
denied.
A compensable evaluation for residuals of a laceration and
fracture of the left third finger is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
GARY L. GICK H. STERLING, M.D.
*
(MEMBER TEMPORARILY ABSENT)
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.